[1] Whether a police officer's legitimate request for a pulmonary test in order to establish a crime of refusing to measure alcohol under Article 148-2 (1) 2 of the Road Traffic Act (affirmative), and whether a police officer's request for a lawful pulmonary test can be deemed as a legitimate pulmonary test under Article 44 (2) of the Road Traffic Act (negative)

[2] In a case where Defendant (a driver of a motor vehicle) was indicted on charges of violating the Road Traffic Act on the ground that he/she failed to comply with a request by a police officer for the measurement of drinking alcohol, on the ground that he/she did not comply with the request of a police officer for the measurement of drinking alcohol by moving to a police box after he/she caused a traffic accident, the case holding that the Defendant acquitted Defendant on the ground that it is difficult to deem that he/she received a legitimate request for the measurement of respiratory from a police

[1] The crime of refusing to take a breath test under Article 148-2 (1) 2 of the Road Traffic Act is established when a person who has a considerable reason to be recognized as being under the influence of alcohol refuses to take a breath test by a police officer pursuant to Article 44 (2) of the same Act. Article 44 (2) of the same Act provides that a driver shall comply with a breath test by a police officer when it is deemed necessary for the safety of traffic and the prevention of danger or when there is a considerable reason to recognize that a person driving a motor vehicle under the influence of alcohol is under the influence of alcohol. Thus, in order to establish the crime of refusing to take a breath test, a legitimate breath test is required by a police officer. However, a request for a breath test when there is a considerable reason to recognize that a person driving a motor vehicle under the influence of alcohol is under the influence of alcohol restrictions on the freedom of action of a person. However, considering the seriousness of a breath test caused by a breath test, it is not subject to the warrant requirement of warrant requirement.

[2] In a case where Defendant, a driver of a motor vehicle, was indicted on charges of violating the Road Traffic Act on the ground that he failed to comply with a request of a police officer for the measurement of alcohol by moving to a police box and failing to comply with the request of a police officer for the measurement of alcohol level, as a result of a measurement of alcohol level from a police officer who was dispatched to the scene after causing a traffic accident, the case holding that the Defendant was acquitted on the ground that the Defendant was requested by a police officer to accompany the police officer to a police box for the measurement of alcohol level immediately after the response of alcohol level at the request of the police officer who was dispatched to the scene of the traffic accident; the Defendant first started with the Defendant’s request that the police officer go to the police box for the measurement of alcohol level; the Defendant left the police box after going to the police box; however, the Defendant did not go to the police box; however, the Defendant did not have contact with the police officer; and in light of the circumstances where the police officer was hospitalized after 1 to 2 days, it is difficult to view that the Defendant received a legitimate demand for measurement by the police officer.

[1] Article 12 of the Constitution of the Republic of Korea; Articles 44(2) and 148-2(1)2 of the Road Traffic Act; Article 199 of the Criminal Procedure Act / [2] Articles 44(2) and 148-2(1)2 of the Road Traffic Act; Article 325 of the Criminal Procedure Act

[1] Supreme Court Decision 2004Do8404 Decided November 9, 2006 (Gong2006Ha, 2123) Supreme Court Decision 201162 Decided December 13, 2012 (Gong2013Sang, 205)

Defendant

Malwon et al.

Attorney Go Jong-dae

A defendant shall be punished by imprisonment for six months.

Of the facts charged in the instant case, the charge of violating the Road Traffic Act (Refusal of measurement) shall be acquitted.

1. Violation of the Act on Special Cases concerning the Settlement of Traffic Accidents and the Road Traffic Act;

On June 9, 2012, around 19:35, the Defendant was driving (vehicle No. 1 omitted) a stop-to-land car in the street near the network property in the Tae-gun, Chungcheongnam-gun, Chungcheongnam-gun, and continued to drive a sto-land car in the direction of the 3rd direction of the network property in the direction of the height of the network property.

At the time, the width of a road without a central line is narrow, and the road is at the right side, so in such a case, the driver of the vehicle has a duty of care to operate the steering and brakes accurately and safely by accurately manipulating the steering direction and brakes such as making the front right and the right and the right and the right and the right and the right and the right and the right are reduced.

Nevertheless, the Defendant neglected to do so and found the Defendant’s vehicle driving in the opposite direction, and stopped the Defendant’s vehicle driving (vehicle No. 2 omitted) of Nonindicted Party 1 (the victim Nonindicted Party 1) driving (vehicle No. 2 omitted) of the victim Nonindicted Party 1 (the victim Nonindicted Party 1), was charged with the Defendant’s passenger vehicle driving part. The victim Nonindicted Party 1 suffered injury, such as a light-line clife, tension, tension, etc. for about three weeks of medical treatment; the victim Nonindicted Party 2 (the victim, the passenger of Nonindicted Party 1 driving vehicle, was charged with the victim Nonindicted Party 3 (the victim, the 39 years old), who was the same passenger, for about three weeks of medical treatment; and at the same time, the victim Nonindicted Party 3 (the victim, Nonindicted Party 39 years old), who was in need of 6 weeks of medical treatment, suffered injury by the Defendant, such as the injury of a chest clife, e.g., repairing the victim Nonindicted Party 1 or the above vehicle.

2. Violation of the Guarantee of Automobile Accident Compensation Act;

The Defendant driven the said car that was not covered by mandatory insurance at the same time and place as stated in paragraph (1).

1. Defendant's legal statement;

1. Each legal statement of the witness, Nonindicted 1 and Nonindicted 4

1. Investigation report on the actual condition of traffic accidents, reports on the occurrence of traffic accidents, and initial investigation report on the site;

1. Compulsory insurance coverage;

1. Each written diagnosis and estimate of Nonindicted 1, Nonindicted 2, and Nonindicted 3

1. Article applicable to criminal facts;

Article 3(1) of the Act on Special Cases concerning the Settlement of Traffic Accidents, Article 268 of the Criminal Act, Article 151 of the former Road Traffic Act (amended by Act No. 11298, Feb. 10, 2012); Article 46(2) and the main sentence of Article 8 of the former Guarantee of Automobile Accident Compensation Act (amended by Act No. 11369, Feb. 22, 2012)

1. Commercial competition;

Articles 40 and 50 of the Criminal Act (Punishments stipulated in the Act on Special Cases concerning the Settlement of Traffic Accidents between the Violation of each Special Cases concerning the Settlement of Traffic Accidents and the Violation of the Road Traffic Act, and the punishment on Nonindicted 3 with the largest punishment)

1. Selection of punishment;

In regard to the violation of the Act on Special Cases concerning the Settlement of Traffic Accidents, the punishment of imprisonment without prison labor and the violation of the Guarantee of Automobile Accident Compensation Act

1. Aggravation for concurrent crimes;

Article 37 (former part of Article 37, Articles 38 (1) 2 and 38 (2), and 50 of the Criminal Act (limited to concurrent crimes with punishment prescribed by the Act on Special Cases concerning the Settlement of Traffic Accidents, the punishment of which is heavier than that of the above two crimes)

In light of the fact that the defendant's negligence in performing his duty of care while driving alcohol causes a traffic accident that causes the shocking of the vehicle that he driven while driving alcohol, the vehicle is destroyed, the three victim was injured, and the victim non-indicted 3 suffered a serious injury that requires approximately six weeks of medical treatment among them, and there is no proper remedy for the victims with non-insurance vehicles in this case, even though the victim's difficulty in providing appropriate relief to the victims with non-insurance vehicles, it is difficult to find out that the defendant has made a serious effort to recover the damage up to the present day, the sentence of imprisonment is inevitable.

In addition, the defendant's age, character and conduct, environment, motive, means and result of the crime of this case, and all the sentencing conditions, such as the circumstances after the crime, shall be determined as ordered by the court.

1. Facts charged;

On June 9, 2012, around 19:35, the Defendant: (a) caused a traffic accident on the street near the network property of the Chungcheongnam-gun, Chungcheongnam-gun; and (b) was measured by Nonindicted 5 at the police station south of the Chungcheongnam-gu Police Station, which called the scene, and was demanded by Nonindicted 5 to take a measurement of alcohol reduction; and (c) despite the above Nonindicted 5’s demand for a alcohol measurement, the Defendant did not comply with the police officer’s measurement despite there were reasonable grounds to recognize that Nonindicted 6 driven by Nonindicted 6 of the Defendant was under the influence of alcohol by flying the breath of the number breath, which was driven by Nonindicted 5, the Defendant, without undergoing a alcohol alcohol measurement, even though he was required by the above Nonindicted 5 to move the breath to the above breath police station.

2. Determination

The crime of refusing to take a alcohol test under Article 148-2 (1) 2 of the Road Traffic Act is established when a person who has a reasonable ground to be recognized as being under the influence of alcohol refuses to take a test by a police officer pursuant to Article 44 (2) of the same Act. Article 44 (2) of the same Act provides that a driver shall comply with a police officer's breath test in cases where it is deemed necessary for the safety of traffic and the prevention of danger or where there are reasonable grounds to recognize that a person driving a motor vehicle, etc. under the influence of alcohol is under the influence of alcohol. Thus, in order to establish the crime of refusing to

However, in a case where there are reasonable grounds to recognize that a person driving a motor vehicle, etc. under the influence of alcohol is under investigation (see Supreme Court Decision 2004Do8404, Nov. 9, 2006; Supreme Court Decision 2012Do1162, Dec. 13, 2012) the demand for a breath test is a kind of investigation (see Supreme Court Decision 2004Do8404, Nov. 9, 2006; Supreme Court Decision 2012Do1162, Dec. 13, 2012). However, as an exception to the warrant requirement, in light of the seriousness of harmful effects caused by a drunk driving, the breath test is weak to the degree that the breath test infringes on the driver's freedom, it is subject to strict interpretation of the requirement for a breath test. In addition, the requirement for a breath test and compulsory investigation can only be deemed a legitimate request for a breath test (see Article 19 of the Criminal Procedure Act).

On the other hand, it is difficult to view that there was a legitimate request for a breath test on the part of the Defendant, as to whether there was a legitimate request for a breath test on the part of the police officer to move the vehicle to the South in the scene of a traffic accident, and it is difficult to view that there was a legitimate request for a breath test on the part of the Defendant. From the perspective of evidence, the Defendant was requested by the police officer to accompany the above police officer to the remaining breath for a breath test immediately after the reaction of drinking at the request of Nonindicted 5 police officer, who was called to the scene of a traffic accident. Accordingly, the Defendant started first by deeming the Defendant to go to go to the remaining breath of the Defendant’s father, who was under contact with the Defendant, going to go to the remaining breath box, but the Defendant was forced to go to contact with the above police officer without leaving the remaining breath box, and there is no evidence to acknowledge that the Defendant was a legitimate request for a breath test from the police officer.

Therefore, this part of the facts charged constitutes a case where there is no proof of facts constituting the crime and thus, is acquitted under the latter part of Article 325 of the

Judges Sung Gung (Presiding Judge) (Presiding Judge) Kim Jong-young accommodation